Professional Documents
Culture Documents
EY Overview of Transfer Pricing
EY Overview of Transfer Pricing
Contents
Legislative framework
Page 2
Transfer Pricing in India- Background
April 1, 2001 onwards
Comprehensive legislation introduced in Union Budget 2001
Page 3
Concept of transfer pricing
Transfer Pricing refers to the pricing
of international transactions between
two associated enterprises
Page 4
Concept
Associated Independent
enterprise entity
International transactions
- goods
- services
- intangibles
- loans
Resident Resident
Page 5
Applicability
The provisions of Section 92 to 92F of the Act are applicable only if:
Page 6
Applicability
Consequences of these provisions:
Page 7
Applicability
Section 92(1)
Section 92(3) -
Page 8
Meaning of Associated enterprises
(Section 92A)
A Direct or indirect participation
(through one or more
intermediaries) in
B Both A and B management, control or capital
are associated
enterprises of C
C
A D
D and E are also
associated
B E enterprises of C
since they have a
common ultimate
C parent (A)
Page 9
Deemed Associated enterprises (Section
92A(2)
Equity Holding Management Activities Control
Page 10
International transaction (Section 92B)
Transactions between two or more associated enterprises
Either or both of whom are non-residents
Transaction relates to:
purchase, sale or lease of tangible or intangible property; or
provision of services; or
lending or borrowing money; or
any other transaction having a bearing on the profits, income, losses or assets of
the enterprises; or
mutual agreements or arrangements for allocation or apportionment of, or any
contribution to, any cost or expense incurred
Scope expanded in Finance Act, 2012 to include - intangibles like marketing
intangibles, human capital, Business restructuring, inter-company guarantees, capital
funding, etc.
Page 11
Deemed international transaction Sec 92B(2)
Transactions with non-group companies deemed to be international
transactions subject to transfer pricing regulations
Prior agreement
Page 12
Specified Domestic Transactions (SDT)
Scope of transfer pricing provisions
expanded (effective FY 2012-13 and onwards)
Applicable to specified domestic transactions if aggregate value of such
transactions exceeds INR 5 crores
Transactions that could be impacted include
Transfer of goods/services between related domestic companies wherein
either of them is eligible for tax holiday benefit
Transfer of goods / services between tax holiday eligible business / units and
other businesses / units of the taxpayer in India
Payments made to persons specified u/s 40A(2)(b) [definition amended]
All provisions applicable for determination of ALP for international transactions would
apply in case of SDT also. Also penal provisions applicable to international
transactions would apply to SDT
Page 13
Which ones of these entities are associated
enterprises of ABC India?
XYZ, Japan
100%
100%
74%
ABC India
Page 14
Arms length price
Price applied or proposed to be applied in a transaction between persons other than
associated enterprises, in uncontrolled conditions
Page 15
The Arms Length Range - How it works
In most cases, it is not possible to identify a
single price that can be considered to be an
uncontrolled price.
It may be that a number of different
comparables are equally comparable. Several
comparable transactions can therefore define
an arms length range of possible transfer
prices
Overall range may contain extremes. Indian
legislation recognizes only arithmetic mean
(with a +/-5% variation) though statistically
and internationally an inter-quartile range may
be more appropriate.
If transfer price falls within a +/- 5% range,
pricing should be defendable as arms length
from tax authority audit perspective
Page 16
Prescribed methods
Tax payer may apply any of the above methods that is considered most
appropriate for a transaction
Page 17
Comparables
All methods require comparables
Transfer price is set/ defended using data
from comparable companies
Comparable company should be independent
and similar to an associated enterprise.
Following factors are generally used in
judging comparability (Rule 10C(2)):
nature of transactions undertaken (i.e. type of
good, service etc.)
company functions
risks assumed
contractual terms (i.e. similar credit terms)
economic and market conditions
Page 18
Comparable Uncontrolled Price Method -Rule
10B(1)(a)
Compares the price charged in a controlled
transaction with the price in an uncontrolled
transaction
Page 19
Comparable Uncontrolled Price Method
Such price adjusted to account for differences if any between international transaction
and uncontrolled transaction(s)
Page 20
Comparable Uncontrolled Price Method
Internal CUP
Related party - B
Manufacturer A
Non-related party
External CUP
Page 21
Resale Price Method- Rule 10B(1)(b)
Compares the resale gross margin earned by associated enterprise with the resale gross
margin earned by comparable independent distributors
An arms length gross margin should be sufficient for a reseller to cover its operating
expenses and make an appropriate operating profit (in light of its functions and risks)
Preferred method for a distributor buying purely finished goods from a group company
without any value addition (if no CUP available)
Page 22
Resale Price Method
Identification of resale price by tested party
Resale price reduced by normal gross profit with reference to uncontrolled transaction(s)
This price may be adjusted to account for functional and other differences if any
Page 23
Cost Plus Method Rule 10B(1)(c)
Compares the gross profit on costs the associated enterprise earns with the gross
profit on costs earned by comparable independent companies
Preferred method for:
manufacturer supplying semi-finished goods
company providing services
Page 24
Cost Plus Method
Identification of direct and indirect costs of production incurred in tested party transactions
Normal gross profit adjusted to account for functional and other differences if any
Page 25
Profit Split Method-Rule 10B(1)(d)
Appropriate for transactions which are not capable of being evaluated separately
Calculates the combined operating profit resulting from a whole
inter-company transaction based on the relative value of each associated
enterprise's contribution to the operating profit
The contribution made by each party is determined on the basis of a division of
functions performed, valued, if possible using external comparable data
Applicable for analyzing tangible, intangible or services issues
Page 26
Profit Split Method
Profit thus apportioned to the tested party is used to arrive at the arms length price
Page 27
Transactional Net Margin Method-Rule 10B(1)(e)
Examines net operating profit from transactions as a percentage of a certain base (can
use different bases i.e. costs, turnover, etc) in respect of similar parties
Ideally, operating margin should be compared to operating margin earned by same
enterprise on uncontrolled transaction
Can compare to comparable transactions between independent parties
Applicable for any type of transaction and often used to supplement analysis under
other methods
Most frequently used method in India, due to lack of availability of comparable
uncontrolled prices and gross margin data required for application of the
comparable uncontrolled price method/ cost plus method/ resale price method
Page 28
Transactional Net Margin Method
Computation of net profit as a percentage of a certain base realised from
the international transaction.
Net profit from uncontrolled transaction adjusted to account for differences if any
The net profit thus established is taken into account to arrive at an arms
length price for the international transaction
Page 29
Which method applies?
Sale of tablets
100kgs at
Rs 100 per
kg 10kgs at Rs 100 per kg
Page 30
Documentation-Rule 10D
Entity related Price related Transaction related
Page 31
Accountants report-Rule 10E
Obtained by every tax payer filing a return in India and having international transaction
whether the tax payer has maintained the transfer pricing documentation
as required by the legislation,
certifies the value of the international transactions as per the books of account
and as per the transfer pricing documentation are true and correct
Page 32
TP Penalties-Section 271
Default Penalty
Post-inquiry adjustment (deemed 100-300% of tax on the adjusted amount
concealment of income)
Page 33
Reading references
OECD guidelines and commentary
www.ibfd.org
Page 34
Our Approach to Transfer pricing
Our proposed approach for transfer pricing review will be based on the following phases
of work as described in detail below:
Report writing/
Accountants report
3 Economic analysis
Calculation of arms length result
1 Fact gathering
Mapping of international transaction Industry Analysis
Page 35
Steps in a transfer pricing study
Investigation & data collection Documentation
1 Questionnaire
Interview
2 Industry overview
Functional analysis
Economic analysis
3 Others
Assist in implementation
Litigation support
Page 36
Assessment Procedure
ITAT AO Order
Appeal
Page 38
Advance Pricing Arrangement (APA) regime
Introduced with effect from 1 July 2012
Framework enables unilateral, bilateral and multilateral APAs
APA to be binding on both the taxpayer and the tax authority for a period not
exceeding five years
APA team constitution notified. Unilateral APAs to lie with APA directorate headed by
DGIT and bilateral/ multilateral APAs to be handled by the Competent Authority
Detailed process guidelines released:
APA applications have a minimum filing fee based on value of
international transaction
APA framework includes mandatory pre-filing consultation
Provisions allow rejection, amendments and withdrawal of APA applications
Provisions contain Annual Reporting norms to monitor adherence to the
terms of the APA
Roll-back not allowed
Framework do not contain firewall provisions in respect of information
shared with APA authority during negotiations
Page 39